People v. Adler

• Decision Date: 21 March 1972
• Docket Number: Cr. A
• Citation: 101 Cal.Rptr. 726,25 Cal.App.3d Supp. 24
• Court: California Superior Court
• Parties: 25 Cal.App.3d Supp. 24 The PEOPLE, Plaintiff and Respondent, v. Benjamin Carl ADLER et al., Defendants and Appellants. 35718. Appellate Department, Superior Court, Sacramento County, California

Page 726

101 Cal.Rptr. 726

25 Cal.App.3d Supp. 24

The PEOPLE, Plaintiff and Respondent, v. Benjamin Carl ADLER et al., Defendants and Appellants.

Cr. A. 35718.

Appellate Department, Superior Court, Sacramento County, California.

March 21, 1972.

Stanley Fleishman, David M. Brown and John Weston, Hollywood, for defendants and appellants.

John M. Price, Dist. Atty. and John W. Parker, Deputy Dist. Atty., for plaintiff and respondent.

DeCRISTOFORO, Judge.

Benjamin Carl Adler appeals from his misdemeanor convictions under Penal Code section 311.2 for the sale of two obscene films, the possession of two other obscene motion picture films and the sale of an obscene book. Defendant William J. Rose appeals from his misdemeanor conviction of the same Penal Code section for sale of the same book. Another misdemeanor charge against defendant Rose for sale of obscene films (different from the Adler films) was dismissed upon motion of the People after the jury's inability to reach a general verdict although having rendered a special verdict that one of the films was not obscene; the court ordered the entry of a verdict of not guilty as to the defendant Benjamin Carl Adler on another charge of sale of obscene film after the jury was unable to arrive at a general verdict but did render a special verdict that the particular film in question (different from the first two Adler films) was not obscene. The defendants appeal from the judgments of conviction.

At the trial, it was shown that appellant Adler on October 14, 1967, sold two films to a district attorney's investigator; four days later, two other films were seized from the trunk of Adler's car, pursuant to a search warrant. On May 8, 1968, the book 'Love Together' was purchased by a sheriff's detective from a sales clerk in the Fulton Book Store, owned by defendant Rose. On June 6, 1968, the same book 'Love Together' was purchased by the chief deputy district attorney of Sacramento County, from a sales clerk in the K Street Book Store owned by appellant Adler. The prosecution further presented expert testimony that the films and book are obscene by statewide standards and the films and book were received into evidence, over objection. Appellants presented expert testimony that the items were not obscene, either by state or national attitudes. Each side fortified its contention by rebuttal and sur-rebuttal testimony.

Appellants contend: (1) The book 'Love Together' is not obscene; (2) misinstruction to the jury on the element of social importance; (3) misinstruction to the jury of a statewide rather than nationwide community; (4) insufficiency of the proof and misinstruction on the element of scienter; (5) unlawful seizure of films because the warrant was general and overbroad, and the seizure was without a prior adversary hearing.

In order to consider the defendants' contentions, it is necessary to bring into its most current focus the general rules relative to obscenity as articulated by the United States Supreme Court. In Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (and its companion case of Alberts v. California) convictions under federal obscenity statutes punishing the mailing of obscene, lewd, lascivious or filthy material, and convictions under the California statute proscribing the keeping for sale or advertising of material that is obscene or indecent were affirmed. Against the contention that such matters were protected as free speech under the First Amendment to the United States Constitution, the court squarely determined that obscenity is Not within the area of constitutionally protected speech or press.

Whether spawned or encouraged by the dissenting views expressed in Roth, subsequent judicial expression did lend growing support to the view that, at least because of its difficulty of definition and/or because of the lack of agreement as to what in fact is obscene, obscenity was no longer a valid subject for statutory prohibition. It would now appear that the high-water mark of the view that obscenity is 'constitutionally protected' was Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, which held that the mere private possession of obscene matter cannot constitutionally be made a crime. The 'right to receive' obscene materials spoken of in Stanley was thereafter interpreted in the lower federal courts as providing constitutional protection to obscenity for its very content. (See for example Karalexis v. Byrne (1969) D.C., 306 F.Supp. 1363, later overruled in Byrne v. Karalexis (1971), 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792.

These contentions were on May 3, 1971, squarely rejected by the United States Supreme Court in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 and United States v. Thirty-seven Photographs, 402 U.S. 368, 91 S.Ct. 1400, 28 L.Ed.2d 822 both of which reassert that obscenity is Not within the area of constitutionally protected speech or press and that Roth has Not been overruled and Does remain the law. The opinion of the Court in Reidel, by Mr. Justice White points out that: '(respondent) Reidel . . . stands squarely on a claimed First Amendment right to do business in obscenity and use the mails in the process. But Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today. Stanley did not overrule Roth and we decline to do so now.' (91 S.Ct. 1410 at p. 1413.) And the concurring opinion of Mr. Justice Harlan in Reidel is equally positive (91 S.Ct. at p. 1414): 'Either Roth means that government may proscribe obscenity as such rather than merely regulate it with reference to other state interests, or Roth means nothing at all. And Stanley, far from overruling Roth, did not even purport to limit that case to its facts: 'We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding'.' (394 U.S. at p. 568, 89 S.Ct. at p. 1249.) The 'right to receive' discussed in Stanley is thus clarified to refer simply to the privacy of a man's thoughts rather than modes of commercial or other distribution. The area of obscenity then remains properly one for legislation reflecting the philosophies and the desires of the populace as reflected by their elected representatives. Those differing philosophies, that obscenity should be prohibited, or that obscenity should merely be regulated to insulate the young (see for example the majority and dissenting opinions in People v. Luros, 4 Cal.3d 84, 92 Cal.Rptr. 833, 480 P.2d 633, decided on Feb. 18, 1971, before Reidel, supra) are recognized as being reserved for the legislative expression of the states: 'This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments' (Reidel, supra, 91 S.Ct. at p. 1413.)

Penal Code Section 311.2, as it read at the time of these offenses provided: 'Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.' Against this statutory language we turn to a consideration of appellants' contentions.

I

They first urge that 'The book 'Love Together' is not obscene and that Penal Code Section 311.2 as construed and applied to authorize the judgments of conviction rendered against the defendants herein based upon the sale of the said book violates the free speech and press, due process and equal protection provisions of the First and Fourteenth Amendments to the United States Constitution, violates the parallel provisions of the State Constitution and the rulings of the United States Supreme Court and other Federal and State Courts holding comparable books to be entitled to constitutional protection.' In support of this contention, appellants urge that explicit description of sexual activity in a book is not synonymous with obscenity and that questions of taste are ultimately a matter for the public to decide for itself. Appellants then cite a number of cases holding other books, which they allege to be completely comparable to 'Love Together,' not obscene. Respondent counters with case citations as to still other publications which have been held obscene as that term is defined in Roth, supra, as well as its testimonial evidence of the obscenity of 'Love Together.' Having reviewed the book, as this court must under Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152, and applying the three-pronged Roth test which was enacted into the definition of 'Obscene,' ¹ this court has no difficulty in stating that the dominant theme of the book taken as a whole appeals to a prurient interest in nudity and sex. It is a vile and pointless recitation of continuously repeated heterosexual, homosexual and lesbian copulation and coupling--oral, genital and anal--all of orgiastic proportion, frequently involving more than two subjects, and early degenerating to sadism, torture and masochism. It is patently offensive and does affront contemporary community standards relating to the description or representation of such matters, and is material which is utterly without redeeming social value.

II

Appellant's second contention is that 'Penal Code Section 311.2 as construed and applied to authorize the judgments of conviction herein upon an uncontroverted record showing that the films involved herein are not utterly without redeeming social importance and upon the giving of instructions and the refusal to...